Unification: A Cheerful Requiem for Common Law Copyright

Abstract

The greatest change of the 1976 Copyright Act has been attended with the least controversy. Common-law copyright, the protection by state law of unpublished works, effectively disappears. A dual system that has persisted since the beginning of the republic gives way to a unified national copyright. To be sure, the cleavage between common-law and statutory copyright under the old scheme was far from total; likewise the absorption of state-created rights into the new statute is also not total. But the works now left entirely to state protection are almost wraith-like; and the states are given little authority to affect rights in works of authorship that are within the subject matter of the statute. This paper will attempt to describe the extent of the changes, with a caution that we are dealing with a newborn statute, which may mature in unforeseen ways. We will first recall the strange shape that the 1909 Act took in accommodating to strained notions of "publication," and then see how the new law, by commencing statutory copyright with the first fixation of a work in any medium from which it can be reproduced, mostly wipes out the significance of publication. A forecast of some of the consequences for the major media will be essayed. The outcome is acclaimed as unifying, and is reinforced by the assertion of federal preemption, in section 301. However, examination of the enacted form of section 301 discloses significant and controversial ambiguities. My thesis is that these ambiguities ought to be resolved in the direction of more thorough unification, instead of leaving to the states substantial segments of artistic and literary production which, in my view, ought to have a uniform national disposition.